Pending
before the court is Plaintiff's Motion for Preliminary
Injunction [ECF No. 65]. For the following reasons, the
Motion is DENIED.

I.
Background

The
plaintiff, CSS, Inc. (“CSS”), has asked the court
to preliminarily enjoin defendants, Christopher Herrington,
Gene Yoho, and Compiled Technologies, LLC (collectively,
“CT”), from “advertis[ing], licens[ing],
offer[ing] to license, sell[ing] or otherwise mak[ing]
available for use” CT's land indexing and estate
management software; “offer[ing] or . . . provid[ing]
support services” for CSS's software; or
“mak[ing] use of any trade secrets, confidential
information or proprietary information of CSS.”
Pl.'s Mot. Prelim. Inj. 1 [ECF No. 65]. However, CSS is
unable to show a likelihood of success on any of the claims
presently before the court, that irreparable harm will occur
absent the injunction, that the balance of the hardships
weighs in its favor, nor that an injunction is in the public
interest. Thus, a preliminary injunction is not warranted.

II.
Procedural History

CSS
filed its Complaint [ECF No. 1] on February 23, 2016. On
September 16, 2016, CSS filed its First Amended Complaint.
First Am. Compl. [ECF No. 59]. CSS brings actions against CT
for copyright infringement, breach of contract, violation of
the duty of loyalty, tortious interference with business
relationships, and misappropriation of trade secrets under
the West Virginia Uniform Trade Secrets Act
(“WVUSTA”). In their Answer, CT filed a
counterclaim against CSS for tortious interference. Answer 11
[ECF No. 61].

On
November 23, 2016, CSS filed Plaintiff's Motion for
Preliminary Injunction wherein it asserted that it was likely
to succeed on its copyright infringement, misappropriation of
trade secrets claims, and breach of contract. Pl.'s Mot.
Prelim. Inj. [ECF No. 65]. CT responded on December 13, 2016.
Defs. Mem. Opp. Pls. Mot. Prelim. Inj. [ECF No. 68]. On
December 16, 2016, CSS moved for an extension of time to
reply to the defendants' response. Unopposed Mot. for
Extension of Time to File a Reply to Defs. Mem. Opp. Pls.
Mot. Prelim. [ECF No. 72]. I granted this Motion [ECF No.
73], and CSS filed a Reply Brief [ECF No. 74] on December 29,
2016.

On
January 25, 2017, the court conducted a hearing on the
Plaintiff's Motion for Preliminary Injunction. Prelim.
Inj. Mot. Hr'g [ECF No. 82]. Because of the volume and
length of evidence put forth, the hearing could not be
completed in one afternoon. This matter was continued to
February 23, 2017, and it was ultimately completed on
February 24, 2017. See Order Continuing Prelim. Inj.
Hr'g [ECF No. 84]; Mot. Hr'gs [ECF Nos. 89, 90]. On
March 22, 2017, both parties filed their proposed findings of
fact and conclusions of law. [ECF Nos. 106, 109, 110].
CSS's Motion is ripe for my review.

III.
Findings of Fact

I need
only make findings of fact pertinent to determining whether a
preliminarily injunction should issue. I
FIND that the facts of this case are as
follows:

1. CSS is a company that provides software and related
support services to local government entities, namely county
clerks in West Virginia. See Hr'g Tr., Jan. 25,
2017, Auburn Direct, 28:1-9.

2. CSS has been in business since 1983. See Hr'g
Tr., Feb. 23, 2017, D. Herrington Direct, 105:11.

4. For over twenty years, CSS has provided various software
solutions including: a land records indexing package, an
estate management package as well as utility billing,
sheriff's tax collection, and other applications.
See Hr'g Tr., Jan. 25, 2017, Auburn Direct,
28:1-4.

6. Christopher Herrington worked at CSS in the computer
software, applications, and programming business related to
county government information and document management
systems. See Hr'g Tr., Feb. 23, 2017, C.
Herrington Direct, 157:8-12; see also Hr'g Tr.,
Jan. 25, 2017, Auburn Direct, 42:10-13.

7. During most of his employment with CSS, Christopher
Herrington was a programmer, and his work included
development of CSS's software, bug fixes, and
modifications. See Hr'g Tr., Jan. 25, 2017,
Auburn Direct, 14:14-23, 16:22- 17:5.

8. Christopher Herrington also provided support for CSS
software packages. Id. at 15:13-23.

9. Christopher Herrington's duties included programming
responsibilities and support responsibilities for both the
CSS land indexing software and the CSS estate management
software. Id. at 16:2-9.

17. CT is in the business of licensing custom computer
software applications. CT offers one program for land records
recording and indexing and one for an estate management
application. See Hr'g Tr., Feb. 24, 2017, C.
Herrington Direct, 44:3-5; see also Hr'g Tr.,
Feb. 23, 2017, C. Herrington Cross, 242:9-11.

21. The programming language RM/COBOL (“COBOL”)
was used in the software of both CSS and CT. See
McCasker Expert Report at 25; see also Mot. by Defs.
for Leave to File Under Seal Ex. 2, at 3 [ECF No. 70-2]
(“Zeidman Expert Report”).

24. The parts of CSS's software relevant to this case
consist of the following architecture and technology: a
client application written in the Microsoft Visual Basic 6
computer language (VB6), a VanGUI Network Communication
Interface Builder (“VanGUI”), TCP (Transmission
Control Protocol) Sockets, an application server with data
files written in COBOL, a Relativity Server, an ODBC (Open
Database Connectivity) Interface, and Crystal Reports OCX.
See McCasker Expert Report at 7-9.

25. The parts of CT's software relevant to this case
consist of the following architecture and technology: a
client application written in the C# computer language
(pronounced “C-Sharp”), a Louis Network
Communication Interface, TCP Sockets, an application server
with data files written in COBOL, a Relativity Server, an
ODBC Interface, and Crystal Reports. See Hr'g
Tr., Feb. 24, 2017, C. Herrington Direct, 9-13.

26. CSS's software includes third-party components such
as VB6, the VanGUI interface, the COBOL programming language,
the Relativity server, and Crystal Reports. See
Zeidman Expert Report at 14-18.

27. The intellectual property rights to the third-party
components-VB6, the VanGUI interface, the COBOL programming
language, the Relativity Server, and Crystal Reports-are not
owned by any party to this case. See Hr'g Tr.,
Feb. 23, 2017, D. Herrington Cross, 148:21-149:12.

29. At some point after 2014, this practice was discontinued,
and all of CSS's source code was removed from all county
servers. See Hr'g Tr., Jan. 25, 2017, Auburn
Direct, 31:1-9, 35:12-18.30. Source code
present on the county servers was available to anyone who had
administrative rights[2] authorized by the county. Id. at
31:3-20, 35:15-18.

31.
Some of CSS's contracts with county clerks' offices
did not have any language requiring the county clerks to
protect CSS's source code on the county servers.
Id.

32. Some of CSS's contracts with the county
clerks' offices did stipulate that the county must
protect CSS's source code. Id. at 32:12-22.

37.
Bert Auburn is not aware of the source code being
identified as confidential when on the county servers.
See Mot. by Defs. for Leave to File Under Seal Ex.
4, at 60:13-18 [ECF No. 70-4] (“Auburn Dep.”).

38. Bert Auburn does not believe that CSS's source
code was encrypted when on county servers. See
Hr'g Tr., Jan. 25, 2017, Auburn Direct, 35:1-9.

To
secure a preliminary injunction, “plaintiffs must
demonstrate that (1) they are likely to succeed on the
merits; (2) they will likely suffer irreparable harm absent
an injunction; (3) the balance of hardships weighs in their
favor; and (4) the injunction is in the public
interest.” League of Women Voters v. North
Carolina, 769 F.3d 224, 236 (4th Cir. 2014) (citing
Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008)). The Fourth Circuit reviews the grant or
denial of a preliminary injunction for abuse of discretion.
The Real Truth About Obama, Inc. v. Fed.
Election Comm'n, 575 F.2d 342, 346-47 (4th Cir.
2009), vacated on other grounds, 559 U.S. 1089
(2010). “[A] a preliminary injunction is an
extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the
burden of persuasion.” 11A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
§ 2948 (3d. ed. 2017) (footnotes omitted).

However,
copyright analysis in the computer program context is often a
“difficult task.” Oracle Am., Inc.
v. Google Inc., 750 F.3d 1339, 1354 (Fed. Cir. 2014);
see Lotus Dev., 49 F.3d at 820 (Boudin, J.,
concurring) (“Applying copyright law to computer
programs is like assembling a jigsaw puzzle whose pieces do
not quite fit.”); see also Comput. Assocs.
Int'l, Inc. v. Altai, Inc., 982
F.2d 693, 696 (2d Cir. 1992) (“In recent years, the
growth of computer science has spawned a number of
challenging legal questions, particularly in the field of
copyright law. . . . As scientific knowledge advances, courts
endeavor to keep pace, and sometimes-as in the area of
computer technology-they are required to venture into less
than familiar waters.”). As the Second Circuit
remarked:

To be frank, the exact contours of copyright protection for
non-literal program structure are not completely clear. We
trust that as future cases are decided, those limits will
become better defined. Indeed, it may well be that the
Copyright Act serves as a relatively weak barrier against
public access to the theoretical interstices behind a
program's source and object codes. This results from the
hybrid nature of a computer program, which, while it is
literary expression, is also a highly functional, utilitarian
component in the larger process of computing.

Comput. Assocs. Int'l, 982 F.2d at 712.

The
scope of copyright protection, however, is limited in that it
does not cover “any idea, procedure, process, system,
method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained,
illustrated, or embodied in such a work.” Id.
at § 102(b); see Mazer v. Stein, 347 U.S. 201,
217 (1954) (“Unlike a patent, a copyright gives no
exclusive right to the art disclosed; protection is given
only to the expression of the idea-not the idea
itself.”); see also Feist Publ'ns,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 358
(1991); Avtec Sys., Inc. v. Peiffer, 21
F.3d 568, 572 (4th Cir. 1994) (“To reiterate, copyright
protects not original ideas but their incarnation in a
tangible means of expression.”).

A work
must be “original” to qualify for copyright
protection. 17 U.S.C. § 102(a). This “originality
requirement is not particularly stringent, ” however.
Feist Publ'ns, 499 U.S. at 358. In the copyright
context, “original” means “that the work
was independently created by the author (as opposed to copied
from other works), and that it possesses at least some
minimal degree of creativity.” Id. at 345. The
more creative a work is, the “thicker” the
protection is for the work, and “less similarity is
needed for a court to find the similarity sufficiently
‘substantial' and thus infringing.” Lydia
Pallas Loren, The Pope's Copyright? Aligning
Incentives with Reality by Using Creative Motivation to Shape
Copyright Protection, 69 La. L. Rev. 1, 30 (2008).
Conversely, highly functional, less creative works have
“thin” protection, and more similarity is needed
to show infringement. Id.

The AFC
Test “has the major advantage of being entirely
consistent with the infringement calculus used for
infringement issues concerning other types of works. In
effect, it is an adaptation of the traditional infringement
test to the medium of computer programs.” Howard B.
Abrams, Copying of Protected Expression-Technology, Functionality and the Ordinary Observer
Test-Commentary, 2 The Law of Copyright § 14:33
(2016). The AFC Test “arose out of the difficulties of
assessing similarity in computer software cases. At its core,
the AFC Test is simply a formalized system to ensure that
elements that are not protected by copyright are excluded
when comparing two works.” Hickey, supra, at
694. In essence, the AFC Test works as follows:

In ascertaining substantial similarity [between two or more
programs] under this approach, a court would first break down
the allegedly infringed program into its constituent
structural parts. Then, by examining each of these parts for
such things as incorporated ideas, expression that is
necessarily incidental to those ideas, and elements that are
taken from the public domain, a court would then be able to
sift out all non-protectable material. Left with a kernel, or
possibly kernels, of creative expression after following this
process of elimination, the court's last step would be to
compare this material with the structure of an allegedly
infringing program. The result of this comparison will
determine whether the protectable elements of the programs at
issue are substantially similar so as to warrant a finding of
infringement.

Comput. Assocs. Int'l, 982 F.2d at 706.

I will
therefore employ the AFC Test to determine substantial
similarity for alleged non-literal copyright infringement of
source code.

2.
Relevant Background Information

Given
the complexity of this type of copyright infringement
analysis, some background information is helpful. In this
case, both CSS and CT's programs have client/server
architecture. Client/server describes “a program
relationship in which the client requests a service or
resource from the server.” Zeidman Expert Report, Ex. J
at 1. Both parties' programs are client/server
applications, meaning that there is a “front end”
or “client side” and a “back end” or
“server” side. Id.; McCasker Expert
Report at 7, 9.

The
three coding languages used in this case are COBOL, VB6, and
C#. The server sides of both CSS and CT are written in COBOL.
The client side of CSS is written in VB6, and the client side
of CT is written in C#. COBOL is “exclusively owned,
developed and maintained by Micro Focus.” Defs. Mem.
Opp. Pls. Mot. Prelim. Inj., Ex. 9, at 2 [ECF 68-9]
(“Letter from Courtney Wood, Associate General Counsel
for Micro Focus”).

This
case also involves several third-party applications:
Relativity, VanGUI, Louis, and Crystal Reports. Relativity is
a data-access middleware product, specifically it is an
ODBC-accessible relational database management system. Defs.
Mem. Opp. Pls. Mot. Prelim. Inj., Ex. 9, at 4-5 [ECF 68-9].
It improves access to COBOL data. Relativity is a
COBOL-specific database engine/driver that is
“exclusively owned, developed and maintained by Micro
Focus.”[5] Letter from Courtney Wood, Associate
General Counsel for Micro Focus 2. VanGUI is a communication
middleware that allows application programs written in COBOL
to be combined with graphical user interface (GUI) front-ends
written in programming languages that support VB6. Defs. Mem.
Opp. Pls. Mot. Prelim. Inj., Ex. 9 at 6-7 [ECF 68-9]. VanGUI
is “a way to modernize COBOL applications.”
Id. at 1; Zeidman Expert Report at 18. Louis is an
interface builder that works in conjunction with COBOL
platforms and products and GUIs. Louis is “exclusively
owned, developed and maintained by Micro Focus.” Letter
from Courtney Wood, Associate General Counsel for Micro Focus
2. Crystal Reports is a business intelligence application
that helps generate reports. Zeidman Expert Report, Ex. H at
2.

The
defendants did not introduce evidence calling the validity of
the copyright into question.[6] If CT had wished to dispute
validity at the hearing, it would have had the “burden
of overcoming the presumption [of validity] arising out of
the granting of the copyright by the Copyright Office.”
M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 434
(4th Cir. 1986). Thus, I FIND that CSS is
likely to show that it owns valid copyrights.

4.
The AFC Test

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
next stage of the analysis is more complex. In order to
demonstrate copyright infringement, CSS must produce either
direct evidence of infringement, or in the alternative, that
(1) CT had access to the copyrighted work, and (2) CT&#39;s
software is substantially similar to CSS&#39;s copyrighted
material. Comput. Assocs. Int&#39;l, 982 F.2d ...

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